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ever be perceived as being written by anyone other than Shakespeare. Stoppard,like Alfred, Rosencrantz,or Guildenstern,has takenon a task that may be insuperablydifficult. Dependingon the effectiveness of the sins of commission and omission, the play may be seen as an emblemof "negative"

Stoppardchose to use apophradesagainstHamlet,as opposed to any other device, or as opposed to any otherplay.Rosencrantzsuppliesone answerto this question.While terrifiedof precedent,RosencrantzandGuildensternalso recognizeits benefits.Along withits violence,precedentis a sourceof comfort and orderin an otherwisenonsensicalworld.Thus, when Guildensternsays,

"You've only got their word for it,"'?0Rosencrantzresponds, "But that's what we depend on."'02Precedentis not only a burden,but it also provides an establishedframeworkin which the characterscan safely play out their lives. The comfort of prior words is made explicit when Rosencrantzand Guildensternencountera less belatedson in the travelingdramatictroupe:

GUIL:You'reevidentlya man who knows his way around. PLAYER:I've been here before.

GUIL:We're still findingour feet.

PLAYER:I shouldconcentrateon not losing your heads.

GUIL:Do you speakfromknowledge? PLAYER:Precedent.'03

The double meanings-dramatic and metadramatic-arerife. Guildensternis tryingto find his feet metricallyand emotionally;the playerwarnsthem not

playerhas "beenherebefore"in bothHamletandRosencrantz.Precedent,of course, is a kind of knowledge:Herethe playerknows from the precedentof HamletthatRosencrantzand Guildensternshouldfear for theirheads.While

the content of this particularprecedentis grim, precedentitself is generally comfortingand stabilizing.

Similarly,Stoppard'sprecedentmay also be stabilizing.While Stoppard may be undertakinga losing battle by placing himself in the context of

Hamlet,the battleis at least againsta knownandworthyadversaryStoppard.

ask if he would be readingRosencrantzif it were not so overtly allied to Shakespeare'splay.

100.See supra note 67.

101.STOPPARD,supra note 8, at 110.

102.Id.

103.Id. at 66.

the remainderof TempeteBy. showingthatthe assignationof roles is random,

thus presents his audience with Une Tempeteratherthan La Tempete-A

that has such people in it!

GONZALOSomethinglike that!I see you know your literature.'07

world, / that has such people in 't!"'09 Gonzalo's line positions Tempete

Hamlet, Tempeteoccurs after The Tempest.Therefore, while Rosencrantz must

2.Swerving

Tempeteattemptsto legitimateits rejectionof precedentby elucidatingthe flaws in the colonialist paradigmpresentedby its predecessor.Specifically,

religion. By showing how Shakespeare'splay distortedhistoryto legitimate colonial rule, Cesaire subvertsthe legitimacy of that rule. Because Cesaire

usurpingtext mustjustify itself.

Prospero'ssuccess in his colonialistendeavoris continuallyshownin The Tempestto be predicatedon language.His magic, which raises the tempest, frees Ariel, puts Mirandato sleep, andincapacitatesFerdinand,dependson a

106. The only role chosen by a player that is not a role from The Tempestis that of the character Eshu. The inclusion of this new name in the prologue is an early indicationthat Tempetemay differ

significantlyfrom its precedent.

1958). Compareid. with CESAIRE,supra note 9, at 29.

494 The Yale Law Journal [Vol. 104: 471

book of magic, withoutwhich, as Calibantells StephanoandTrinculo,"[h]e's but a sot, as I am, nor hath not / One spirit to command.""1Although Calibanmightbe dismissedas an unreliablenarrator,this particulartestimony is borneout by Prosperohimself,who equatesthe renunciationof magic with the act of drowninghis book."' Prospero'smagic also seems dependenton speech;he mustexplainthe effect his powerwill have on his listenersbefore this impactis realized.Arieldoes notrememberhis liberationfroma pineuntil Prosperotenders a vituperativereminder;Mirandamust be told that she is "inclin'dto sleep" and that she "canstnot choose""2before she sleeps; and Ferdinand does not acknowledge Prospero's power over him until the enchantertells him thathis "nervesare in theirinfancyagain.""3

dissolves Prospero'slinguisticpowerbeforehe himselfrenounces Tempete

it (as he does in Shakespeare'splay). In The Tempest,Caliban utters the famous lines: "Youtaughtme language;and my profiton't / Is, I know how to curse.""4 Not only has Shakespeare's Caliban profitlessly learned Prospero's language, but he also appears to have forgotten his own. In Cesaire'splay, however,Calibanretainshis indigenouslanguage:

CALIBAN Uhuru!

PROSPEROWhatdid you say? CALIBANI said, Uhuru!

PROSPEROBack to your native languageagain. I've alreadytold you, I don't like it.'15

"Uhuru,"Swahili for "freedom,"was the watchword of the Mau Mau rebellionsin Kenya in the 1940's."6Caliban'scry thus representsa rebellion

brutish.""7This interchangefrom Tempete,however,deprivesher statement of its valuative content. By showing Caliban's native language to be an intelligible one (Swahili), Cesaireexploresthe possibilitythatShakespeare's Mirandamay have understoodCaliban'slanguageas little as he understood hers.1"8

110.SHAKESPEARE,supra note 109, act 3, sc. 2, 11.91-92.

111.Id. act 5, sc. 1, 1. 57.

112.Id. act 1, sc. 2, 11. 185-86.

113.Id. act 1, sc. 2, 1.487.

114.Id. act 1, sc. 2, 11.365-66.

115.CESAIRE,supra note 9, at 13.

116.JANISL. PALLISTER,AIMECESAIRE89 (1991).

117.SHAKESPEARE,supra note 109, act 1, sc. 2, 11.358-59.

118.Unlike Stoppard'sRosencrantzand Guildenstern,C6saire's Caliban is never forced into any dialect-Renaissance or otherwise-that is not his own.

has alreadyexorcised the island of the power of Caliban'smother,Sycorax. TempetequestionswhetherProsperotrulyeffected thatbanishment.

CALIBANDead or alive, she was my mother,andI won't deny her! Anyhow,you only thinkshe's deadbecauseyou thinkthe earthitself

that it is alive, and I know that Sycorax is alive.... Often, in my dreams,she speaksto me and warnsme...."9

Again, Tempeteinvokes a sourceof powerthatwas repressedin the original play.VanquishingSycoraxwas the predicateforProspero'sdominionoverthe

disruptionof the masquein Act IV of TheTempest,which introducesa jarring note in one of Shakespeare'smost structuredlate plays.'20In The Tempest, Prosperoostensiblydisruptsthe masquebecausehe remembersCaliban'splot to murderhim, althoughCaliban'sthreatis so negligible as to be comic. Yet if thereis a deepermotivationfor his agitation,Prosperodoes not shareit with the othercharactersor with the audience.

of the masque:He addsthe characterof Eshu,a revisedandmorepotentform

attemptto namehim disguststhem.WhenIris claims thathe is like "Liberor

Junodeclares,"Don'tmentionthatnamein my presence!"'23 Priapus!"'22

3. Conclusion

Like Rosencrantz,Tempeteappearsto recognizethat "[t]heremust have been a moment,at the beginning,where we could have said-no."'24 Unlike Rosencrantz,however, Tempetedoes not miss this moment. Its choice of

119.CESAIRE,supra note 9, at 15.

120.FrancisBarker& PeterHulme, Nymphsand reapersheavily vanish: The Discursive Con-texts

of The Tempest,in ALTERNATIVESHAKESPEARES191, 202 (JohnDrakakised., 1985).

121.CESAIRE,supra note 9, at 54.

122.Id.

123.Id.

124.STOPPARD,supra note 8, at 125.

United States, as it has done in five othercases in the last decade, again asks us to overruleRoe.'26

It is this doubtthatthe authorsof the joint opinionfeel compelledto clarify in Casey. Justice Blackmun's opinion calls the joint opinion an "act of personal courage and constitutionalprinciple,"contrastingit to previous decisions in whichJusticesO'ConnorandKennedypostponedreconsideration of Roe.'27

As in Rosencrantz,thereis little doubtthatprecedentexists for Casey:A mention of Roe and the five attemptsto overrule it directly follows the question presented.The issue that the joint opinion must decide is whether

staredecisis mandatesthatthis "strong be ghost"'28 applied.

The obligationto follow precedentbegins with necessity, and a

contrarynecessity marksits outerlimit. WithCardozo,we recognize that no judicial system could do society's work if it eyed each issue afreshin everycase thatraisedit. Indeed,the very conceptof the rule

of law ... requires such continuity over time that a respect for

different necessity would make itself felt if a priorjudicial ruling should come to be seen so clearly as errorthat its enforcementwas

for that very reasondoomed.'29

The doctrine of stare decisis is invoked in its relaxed form,'30one that

balancesprecedentagainstreason.The relaxedformof the doctrineallows for the possibilitythatprecedentmay notbindeven if the doctrineof staredecisis is applied. Thus, the question of whetherone can choose not to adhereto precedenthauntsthe authorsof thejoint opinionin the sameway thatquestion hauntsRosencrantzand Guildenstern.

2. PrecedentAppearsToBind

Theoretically,the crucialdifferencebetweenthe anxietyof influenceas it operatesin literatureand law is the addedweight given to precedentin law

like StoppardandCesairecan choose to addressa particularprecursor,judges

are ostensibly forced to grapple with particularprecedents.As a practical matter,however,the pressureexertedby staredecisis is unclear.In grappling

126.112 S. Ct. 2791, 2803 (1992) (opinionof O'Connor,Kennedy,andSouter,JJ.)(citationomitted).

127.Id. at 2844 (Blackmun,J., concurringin thejudgmentin part,concurringin part,and dissenting

in part).

128.See supra text accompanyingnote 64.

129.112 S. Ct. at 2808 (opinionof O'Connor,Kennedy,and Souter,JJ.) (citationsomitted).

130.See supra text accompanyingnotes 36-38.

498 The Yale Law Journal [Vol. 104: 471

with stare decisis, the joint opinion providesa self-conscious account of its own strugglewith the doctrine.

In determiningwhetherto adhereto precedent,thejoint opinionconsiders a "series of pragmatic and prudential considerations."131Adherence to

precedent is requiredif: (1) the holding of the precedenthas not proved

(3) therehas been no doctrinalchange since the precedent;and (4) therehas been no factualchange such that its centralholding is no longerjustified.132 The joint opinion discusses each of these factorsin the context of Roe and concludes that,because each of the conditionsexists, staredecisis shouldbe applied.Based on this analysis,thejoint opinionconcludesthat"[w]ithinthe bounds of normal stare decisis analysis ... the stronger argument is for affirming Roe's central holding, with whatever degree of personal reluctance any of us may have, not for overrulingit."'33This remarkis the equivalent of Claudiusand Gertrudewalking into Stoppard'splay for the first time: It shows the dreadweight of precedentin the belatedtext by implying that at least one authorof the joint opinionis being boundby staredecisis although

his or herpersonalpredilectionsmay have led to a contraryresult.By relying on the four "pragmatic"factors,the joint opinion implies that its role is to detect, ratherthanto invent,the degreeto which precedentmust prevail.

Consideringthe compositionof the Court,this is a surprisingresult. A majorityof the Courthadbeen nominatedby two Republicanpresidentswho were avowedly anti-abortion,giving rise to the assumptionthatCasey would overruleRoe.134This led one commentatorto registerhis surpriseat thejoint opinion's decision as follows:

The doctrineof staredecisis has been of diminishingimportance in constitutionaladjudicationfor a numberof years. Rhetorically, appeals to precedentremain importantfeatures of SupremeCourt opinions. However,to a numberof observers,it has seemed that no

precedent-particularlya precedentdealingwitha politically-charged issue-is safe if five Justicesdisagreewith it on the merits.

Concluding that the Constitutionprohibits states from imposing "undueburdens"on the rightof a womanto obtainan abortion,the

majorityopinion in Casey relied heavily on the doctrine of stare decisis in refusingto overruleRoe v. Wade.Moreover,thereis every indication that for at least some of the Justices, the appeal to

131.112 S. Ct. at 2808 (opinionof O'Connor,Kennedy,and Souter,JJ.).

132.Id. at 2808-09.

133.Id. at 2812 (emphasisadded).

134.See Sullivan,supra note 2, at 24-25.